Tech policy issues play a prominent role in the Democratic Party's 2012 platform, released this week for the party's national convention in Charlotte, North Carolina. The document touts an active federal role in a wide variety of tech policy issues, from copyright enforcement to the expansion of broadband Internet access.

Both major US party platforms endorse "Internet freedom"—but for both parties the phrase comes with important caveats. Last week, the Republicans called for "vigorous enforcement of current laws on all forms of pornography and obscenity," as well as the preservation of the ban on online gambling. The Democrats are silent on pornography and gambling, but they make the case for "vigorous" copyright enforcement efforts.

Vigor!

"The administration is vigorously protecting US intellectual property," the new Democratic platform declares, through "better enforcement and innovative approaches such as voluntary efforts by all parties to minimize infringement while supporting the free flow of information." That's a reference to things like the "graduated response" system in which ISPs would penalize their users if they were accused of copyright infringement six times. (The White House helped brokered the deal between major ISPs and Hollywood.)

Another policy that fits the theme of "vigorous" enforcement (though it isn't named specifically) is Operation In Our Sites. Under that program, the federal government has seized hundreds of allegedly infringing domain names before the site owners had a chance to be heard.

President Obama also has his party's backing on the use of trade negotiations as a lever to pressure other countries to adopt American-style copyright and patent laws. While it doesn't mention the controversial ACTA treaty, the Democratic platform promotes the Trans-Pacific Partnership agreement and praises "free trade" agreements with Panama and Colombia for "protecting labor rights, the environment, and intellectual property."

Democrats also take credit for having "reformed the patent system to speed approval of investors’ patents and provide alternatives to wasteful litigation." That's a reference to last year's America Invents Act, which—as we predicted—has not slowed down the surge in patent litigation. The platform contains no mention of the continued problems with the patent system or the need for more substantive reforms.

The Republican platform, released last week, was largely silent on patent and copyright issues. These issues are mentioned only in the context of accusing foreign countries—especially China—of failing to protect Americans' copyright and patent rights.

Defining freedom

The Democrats' stance on these issues is especially frustrating because many advocates of copyright and patent reform hail from the political left. (Copyright reformer Larry Lessig was a strong supporter of the Obama campaign in 2008, for instance). Yet advocates of reforming the copyright and patent systems appear to have had modest impact on either Obama administration policies or on the 2012 Democratic platform. If anything, the Democrats appear to have adopted an even more Hollywood-friendly stance than the Republicans.

Some public interest groups have gamely tried to spin the two platforms as a victory for Internet freedom. David Segal of Demand Progress, a group that played a key role in stopping the Stop Online Piracy Act earlier this year, called it a "huge victory for the Internet" that both the Democratic and Republican platforms formally endorse the concept.

But specifics speak louder than generalities. Obviously, everyone is happy to endorse "Internet freedom" in the abstract. But the administration's actions over the last three years suggests that it places a premium on currying favor with Hollywood, just as the Republicans' nominal commitment to Internet freedom takes a back seat to conservatives' opposition to pornography and gambling. Or consider net neutrality, where supporters want to use government power to keep the Internet "free" for users, while opponents want to keep the Internet "free" from the application of such power. Both sides use the same words, but they're not talking about the same things.

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits

If Johnny Entrepreneur comes up with some cool new service / application, but knows that 20 different companies hold what he considers highly questionable patents that could all be used to sue his service as soon as he launched (even though he truly has something new and unique), there's a good chance he'll be wary of moving forward with making his innovation known to the world.

This situation is explained in the Wikipedia article, and in my original post. You can license the patents or fight to invalidate them in court (using your startup capital, plus they'll be stuck with the lawyer fees when you "inevitably" win!), or you can implement workarounds that will make your product stand out even further. Plus if you have the cojones you can get all sorts of media attention by painting yourself as the underdog against the evil corporations keeping you down.

So, to be frank, it is the entrepreneur's lack of proper business knowledge that is killing their innovation, not the system they didn't take the time to understand.

Quote:

patent lawyers who write patent applications will, as I understand it, write things to be absolutely as broad as possible and cover as many variations on the "specific implementation" as the USPTO will allow them to get away with.

Yes, yes they do. But no matter how many variations of the specific implementation they cover, it doesn't cover a different implementation. Anything broad enough to cover multiple implementations *will* be invalidated, and as punishment they end up stuck with the bad PR and lawyer fees.

Quote:

you get patents being awarded that many people within the industry can read through and conclude are in fact nothing more than claiming a general idea.

This situation is explained in the Wikipedia article, and in my original post. When a patent is granted it does not make the company invincible (even though they may pretend to act otherwise), as the patent can be challenged and invalidated in court. And again, they end up with the lawyer fees.

Quote:

(3) A very easy example of patents harming the little guys is the whole Lodsys case of them targeting all sorts of indie app developers who generally won't have the resources to go to court and fight a dubious patent infringement claim. And you claimed that "patents are actually essential for startups so the large companies can't just steal their work and out-manufacture and out-market them".

They are essential, regardless of whether patent trolls exist. The part you left out is that Lodsys was sued by multiple companies to have the validity of their patents challenged in court. It only takes one.

Quote:

But as mattg pointed out, in other industries (especially software) you get a huge benefit of just being a first mover, and the notion that patents are necessary to be successful as a new company is not well supported by recent history.

I'm actually waiting for him to back up his claim (why aren't you waiting too?), but either way patents are only one pillar of IP protection: copyright protects the assets, patents protect the implementations, and trademarks protect the branding. Software happens to need all three, and from what I've seen the major software companies use all three in the way they are intended.

Quote:

if you just hand wave them away by saying, "no, that's not how it works," then you're missing the points people are making.

Can you stop doing that? I've been very patient in explaining the basics of patents to you, since you apparently have no intention of reading the Wikipedia article.

EDIT: Make no mistake: patents are meant to be defended in court, as it is literally impossible to check against all prior art and achieve absolute certainty that it should be granted. It is up to each individual patent holder to defend and assert their own patents, and to carefully monitor new patents and products to check for infringement. It is also up to each patent holder to submit patents that are actually valid, since if they aren't they're stuck with the unenviable choice of paying to maintain the patent but never being able to enforce it, or actually enforcing it and getting stuck with the lawyer fees when it's invalidated.

You've made some good points Bonzai but I'm not sure that last edit works. How is it possible for patent holders to submit patents that are actually valid if it's also literally impossible to check against all prior art and achieve absolute certainty that it should be granted? Although I agree that sensible patent holders will review their portfolios from time to time and weed out any patents that they can't or won't enforce in practice.

I also think you're being a little blase about invalidating patents. Getting a patent invalidated is expensive, whereas obtaining and maintaining that patent in the first place is a lot cheaper. To me, that's the biggest problem with the patent system, as it is comparatively easy to build a large portfolio of dubious patents and much more difficult for third parties to get those dubious patents revoked. Incidentally, if you check back through my posts here, you'll find that I'm fairly pro-patent, so I hope this comes across a reasoned argument rather than a knee-jerk anti-patent response!

There can also be good reasons why you wouldn't challenge a patent for invalidity. Why bother, if you can find some nice prior art to defend yourself. Then, if the patent holder does try and assert the patent against you, you just quietly produce your prior art. At which point the patent holder will most likely back off or risk losing the patent altogether. You can continue with your business, secure in the knowledge that you won't be sued and avoiding the expense of going to court. Better yet, your competitor's patent is now working for you, in that it still presents an obstacle to any other mutual competitors.

I don't find this particularly balanced at all. Given that Democrats controlled Congress for two of the last 20 years, it's worth noting that Hollywood gets their way no matter who is in power. Extending copyrights? Republican Sonny Bono championed it before his death. His wife does the same. That Chris Dodd went to the MPAA was the continuing of the same trend that's been going on since Jack Valenti quit LBJ for the studio moguls.

I strongly put forward the idea that there is absolutely no difference between democrats and republicans where Hollywood is concerned.

And either way mattg said software companies with patents, not software companies with software patents.

I'm really not sure what you're saying here. Google and Facebook were two of my examples, both recent companies that went from small to big without any need for patents. Twitter's another example, and there are hundreds more. That's my whole point (or at least one of them) - patents are unnecessary to provide incentives for companies to do very innovative things in the software market. And because they are unnecessary, their use creates economic waste and a net loss to society.

BonzaiThePenguin wrote:

Plus I'm not sure how it's a good thing that the major software companies got their start in software by crushing their competitors with their superior production and marketing abilities instead of their ability to innovate and differentiate. Isn't that the exact type of thing patents are supposed to protect against? Give the little guys a chance against Microsoft and IBM?

You appear to have misunderstood my argument. My argument was that Microsoft became the giant that it is without the need for software patents. Microsoft was a little guy once.

BonzaiThePenguin wrote:

Books are copyrighted in the same way that software assets are copyrighted, and if books had non-obvious unique features they could be patented in the same way that non-obvious unique software features can be patented, and the same way that non-obvious unique hardware features can be patented.

So particularly novel characteristics of plot lines should be patentable? Is that what you're suggesting?

BonzaiThePenguin wrote:

Quote:

Cases can go on for years and years (SCO) and cost millions upon millions of dollars. For a start up, that's a death knell.

SCO went bankrupt as a direct result of losing their case.

There are plenty of other examples that Ars has pointed out over the last couple of years.

BonzaiThePenguin wrote:

Make no mistake: patents are meant to be defended in court, as it is literally impossible to check against all prior art and achieve absolute certainty that it should be granted. It is up to each individual patent holder to defend and assert their own patents, and to carefully monitor new patents and products to check for infringement. It is also up to each patent holder to submit patents that are actually valid, since if they aren't they're stuck with the unenviable choice of paying to maintain the patent but never being able to enforce it, or actually enforcing it and getting stuck with the lawyer fees when it's invalidated.

I take strong issue with this. When you say that patents should be defended in court, not at the USPTO, you are advocating shifting the cost of proving patent validity from the company which files the patent to its competitors. That seems absurd to me, and it creates some really perverse incentives. One great way to reform the system, seems to me, would be to substantially increase the cost of filing a patent so that the USPTO could actually do its job and check patents for validity themselves. You may say, "but if you invalidate the patent you get lawyers' fees!", but that largely ignores recent history. In the Oracle v. Google case, many of Oracle's patents were invalidated at the USPTO, but Google was awarded no lawyer fees, only a paltry $1 million in costs. Small companies that get attacked by dubious patents often go out of business. Only very rarely does a court find a patent invalid, because the court proceeds on the assumption that the patent is valid. If the USPTO has decided to shift the burden of proving validity to the courts, the courts don't seem to have gotten the memo, because they still assume validity.

This is going to be the worst election ever no matter what party you vote for you are screwed. Both partys appear to be pro Sopa. I know is sopa dead, but they will keep introducing a form of it till it passes and then one more freedom get stripped away.

Cable is already to expensive. Hell so is internet. If these laws pass I see more price hiking in the future. I don't know about you guys but my internet is $93 a month for internet only. I had expanded basic cable for a while to get the internet discount but it was still $110 a month, and I never used used the cable. Before that I had the mack daddy package which was $180 a month, and it was still lacking.No point in voting if no matter who I vote for is going to pass the one thing I hard core against.

The Massive Data Center in Utah, surveillance drones, and now this. It sure sounds a lot like a modern day Hitler senereo coming in the future.

This is going to be the worst election ever. No matter what party you vote for, you are screwed. Both partys appear to be pro Sopa. I know is sopa dead, but they will keep introducing a form of it till it passes and then one more freedom get stripped away.

Cable is already to expensive. Hell so is internet. If these laws pass I see more price hiking in the future. I don't know about you guys but my internet is $93 a month for internet only. I had expanded basic cable for a while to get the internet discount but it was still $110 a month, and I never used used the cable. Before that I had the mack daddy package which was $180 a month, and it was still lacking.No point in voting if no matter who I vote for is going to pass the one thing I hard core against.

The Massive Data Center in Utah, surveillance drones, and now this. It sure sounds a lot like a modern day Hitler senereo coming in the future.

Both partys appear to be pro Sopa. I know is sopa dead, but they will keep introducing a form of it till it passes and then one more freedom get stripped away.

SOPA is dead. That by no means indicates that other IP protection schema won't be drafted and distributed around the Hill. But SOPA is politically radioactive. Congressional staffers spent literally months putting off (arguably more important) work to do research and answer e-mail and letters and phone calls about SOPA and just what exactly it would mean. Most of the lawyers on the Hill have learned far more about IP law than they ever wanted to.

Alli Halataei and Lauren Pastarnack (the women who drafted the bill) are persona non grata around here, despite their shiny new "lobbying" jobs. But they desperately needed those gigs because their credibility on the Hill is completely shot. Anything they drafted was likely to be dumped into a shredder upon receipt and I'm not saying memos were circulating instructing staffers to drop their calls...

Also, Tim, seriously disappoint. IP protection is a two party racket. That's why it's so dangerous.

I find it wonderfully naive to believe either candidate would speak in favor of patent reform in an election year, even if that is what they believe in. You won't hear a word about patent reform unless the question is put directly to the candidate and then they will likely weasel around it. Check back sometime next year and see what the President will consider then.

BTW, agree the article was fair and balanced, from a party perspective. It doesnt' clearly side w/either party. It does side w/the tech geek who believes reform is needed of course heh

This is patently (*snicker*) false. R&D work is expensive, time-consuming, and risky (there's no guarantee that paying someone to come up with a workable design will actually produce a workable design), and patents are there to reward the companies who take the risks and manage to innovate. Punishing other companies by making them license the patents or work around it, lest they risk having their product removed from the market – while having a short-term negative effect on the consumers who wanted that product – actually encourages the companies to innovate as quickly as possible so they can have all of the patents to themselves. It's a brilliant way of turning corporate greed into ridiculous amounts of innovation, with the main "downside" being that they get to sue each other a lot.

Software R&D is cheap, rapid and pretty much guaranteed to produce something saleable. That also happens to be the fastest growing section of the patent market. Every few years we hear about some new piece of hardware that was developed and patented. Every week we hear about some new piece of software.

I'm all for protecting the aspects of invention that in fact take time, effort and (significant amounts of) money to develop. Software does not enter into that. A team of ten software engineers can develop in a year more "inventions" than a team of a hundred hardware engineers could in ten.

Further, software companies already have two protections in place: obfuscation and copyright. Obfuscation means they show the result of their "invention" and not the process. Copyright means that their competitors have to develop their own implementation that (depending on the skill of the developers) may not be as good as the original. Together those help to protect a software entity from being by a bigger, established competitor.

You will not see me railing against the existence of patents as a whole, but patents for software are a joke. I say this as a software engineer who would never consider patenting any of the software that I write (personally that is; should a/the company(ies) I work for do so I have no control in that decision making process).

Everyone one dealing with or thinking about intellectual propriety are in a state of denial.

Even I think there should only be 2 rules, if its made and claimed and you can support that claim of ownership then you have the right to 60% off any profit made from its distribution.

If its disturbed for no monetary gain(IE gifts of any kind ,donations of any kind, revenue generation of any kind,) then it can not do damage to the IP since the only real way to do harm is to create for profit sites like what we have now.....

The problem is that definitions like that get stretched to the point of absurdity. Anything short of payment in exchange for the content is insufficient to demonstrate "harm". Advertising doesn't cut it. That just keeps the server running. It's not enough to prove enrichment from using someone else's creative work.

Something need to be a rogue iTunes or Netflix in order to be sufficiently commercial to be declared commercial for the sake of copyright infringement.

Watered down definitions just lead to absurd judgements against swappers.

American political process does not function anymore. USA today is just like any other banana republic where whoever has the most money to bribe the government is the absolute ruler, in case of US that would be the megacorps - Big Food, Big Oil, Big Pharma, Hollywood and ofcourse Wall Street. The parasites are hard at work sucking on the host, keeping it just barely alive, but too crippled to revolt.

16 years and four elections later and this Simpson's quote is oh so relevant:

Kodos: It's true, we are aliens. But what are you going to do about it? It's a two-party system. You have to vote for one of us. Man 1: He's right, this is a two-party system. Man 2: Well I believe I'll vote for a third-party candidate. Kang: Go ahead, throw your vote away.

Hollywood, and big corporations. That's whats up with all this patent litigation. Its to keep small people from having opportunity to become something, and to stop innovation.

These Sopa laws could lead to a civil war. I don't want war, but its coming. A lot of us may be unarmed, but there are many people in each city who have enough weapons to arm a whole platoon, multiply that by a few million collectors and there are enough guns to arm every citizen. Then there are those who know how to manufacture weapons.

When the government fears the people You have liberty. When the people fear the government you have tyranny. The government no longer fears its people, but should. A large number of them are prepared. America is slowly turning into a dictatorship, and this could lead to an other civil war.

Hollywood, and big corporations. That's whats up with all this patent litigation. Its to keep small people from having opportunity to become something, and to stop innovation.

These Sopa laws could lead to a civil war. I don't want war, but its coming. A lot of us may be unarmed, but there are many people in each city who have enough weapons to arm a whole platoon, multiply that by a few million collectors and there are enough guns to arm every citizen. Then there are those who know how to manufacture weapons.

When the government fears the people You have liberty. When the people fear the government you have tyranny. The government no longer fears its people, but should. A large number of them are prepared. America is slowly turning into a dictatorship, and this could lead to an other civil war.

The puny handguns and rifles citizens have access to don't much compare to tanks, unmanned drones with cluster bombs, and the general might of the Army, Marines, Navy, and Air Force. Don't for a moment think the government wouldn't call in the armed forces and kill any citizens revolting with total impunity. Things are no longer as equal as they were when the second amendment was written.

Things are no longer as equal as they were when the second amendment was written.

The 2nd Amendment was also written assuming all those gun owners belonged to a militia. I don't see a lot of that syncing up w/modern gun owners. Please note that I don't have a problem w/gun ownership. Just saying.

I also agree that civilian guns don't compare to tanks and missiles and America recalling their armed forces to destroy its own people, but a)that last scenario is rather far fetched and b) if it DID happen, well, a million ants can strip a cow clean of flesh in minutes.

I wish I could just keep my head down and just keep coding. Campaigns like the '12 presidential election just make my stomach turn. I honestly don't want to vote this year; I hate both candidates. There is no escaping the guilt this time around.

Well if they're really for internet freedom why in the hell are they bending over backwards to please Hollywood? Explain me this..

We pay them less than Hollywood does? Plus Hollywood's campaigns about piracy actually do have an effect on some people and if one of the candidates came out in favor of letting people download whatever they wanted, they would be toast. The opponent would have a field day and the MPAA would kick into overdrive spinning how they are trying to run people out of a job. People want their movie stars.

The puny handguns and rifles citizens have access to don't much compare to tanks, unmanned drones with cluster bombs, and the general might of the Army, Marines, Navy, and Air Force. Don't for a moment think the government wouldn't call in the armed forces and kill any citizens revolting with total impunity. Things are no longer as equal as they were when the second amendment was written.

You seem to be forgetting a very important part of any battle: morale. It's a far bigger blow to morale to have to kill your fellow citizens than to merely detain them. More soldiers are going to have to question their leadership if they have to kill their friends, family, and other people they know, and possibly be killed themselves, than if the resistance put up is at best a few kicks and punches.

First lobbying needs to be made into an illegal practice. If that is done then third parties would have a chance. The main reason that they lose, IMHO, is because they get out spent. Commercials, unfortunately, do make a difference with the voters of America. Sad to say but it is true. People don't want to think for themselves, they want to be told what to do.

Akemi wrote:

The puny handguns and rifles citizens have access to don't much compare to tanks, unmanned drones with cluster bombs, and the general might of the Army, Marines, Navy, and Air Force. Don't for a moment think the government wouldn't call in the armed forces and kill any citizens revolting with total impunity. Things are no longer as equal as they were when the second amendment was written.

You assume that the average American soldier would fire and kill the American public. For the majority I really do not think that they would ever do that. And if if did break out into civil war Texas, where I live as of now, would declare instant secession and leave the Union. I think that they could pull it off. Texas has enough military bases manned by Texan soldiers that they could defend the borders.

First lobbying needs to be made into an illegal practice. If that is done then third parties would have a chance. The main reason that they lose, IMHO, is because they get out spent. Commercials, unfortunately, do make a difference with the voters of America. Sad to say but it is true. People don't want to think for themselves, they want to be told what to do.

Akemi wrote:

The puny handguns and rifles citizens have access to don't much compare to tanks, unmanned drones with cluster bombs, and the general might of the Army, Marines, Navy, and Air Force. Don't for a moment think the government wouldn't call in the armed forces and kill any citizens revolting with total impunity. Things are no longer as equal as they were when the second amendment was written.

You assume that the average American soldier would fire and kill the American public. For the majority I really do not think that they would ever do that. And if if did break out into civil war Texas, where I live as of now, would declare instant secession and leave the Union. I think that they could pull it off. Texas has enough military bases manned by Texan soldiers that they could defend the borders.

Copyright has been a part of the American fabric since the beginning of our country. If you want to rail about how this isn't what our forefathers envisioned, please keep in mind that copyright and patent protection has been enshrined in our constitution since it was written. If our forefathers had such a problem with it, surely the prolific inventor Jefferson would have lifted his quill, and the presiding officer of the Constitutional Convention, General Washington would have rapped his gavel to stop it.

Like many parts of our legal code and even constitution, we must use jurisprudence to interpret what our forefathers wrote over 200 years ago to be able to apply it to modern times. In the case of copyright, this has been done with the advances of LPs, Tapes, Betamax and VHS, CDs and DVDs, and now streaming.